1

 Plaintiff cites the “saving to suitors” clause, 28 U.S.C. sect. 1333(1), which provides

federal admiralty and maritime jurisdiction to the federal courts but reserves plaintiffs’ “remedies

to which they are otherwise entitled” as support for his argument of concurrent jurisdiction (See

Plaintiff’s brief, p. 10, n. 3). As early as 1918 the U.S. Supreme Court held that this clause does

not mean that defendant’s liability should be measured by state common law instead of federal

maritime law standards, but that courts are bound to apply federal admiralty law where admiralty

law controls (i.e., where the injury occurs on navigable waters and has a relationship to traditional

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

JOSEPH MARINO : CIVIL ACTION

:

Plaintiff : NO. 02-4488 

:

v. :

:

SLS, INC. d/b/a HOLT OVERSIGHT AND :

LOGISTICAL TECHNOLOGIES, ET AL. :

:

 Defendants :

REPLY OF DEFENDANTS SLS, INC. d/b/a HOLT OVERSIGHT AND LOGISTICAL

TECHNOLOGIES AND TRANS OCEAN MARITIME SERVICES, INC. TO

PLAINTIFF’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Defendants SLS, Inc. d/b/a Holt Oversight and Logistical Technologies and Trans Ocean

Maritime Services, Inc. address Plaintiff’s Brief in Opposition to their Motion for Summary Judgment

in seriatim:

DEFENDANT TRANS OCEAN

Plaintiff asserts that the issue of whether Trans Ocean, Plaintiff’s employer, may be exempted

from the exclusivity provision of the L.H.W.C.A. is dictated by both Federal Admiralty Law and

New Jersey State Law under the New Jersey Workers’ Compensation Act, N.J. Stat. 34:15-1, et.

seq.1 As such, Plaintiff argues that the holding in Laidlow v. Hariton Machinery Company, Inc., et

Case 2:02-cv-04488-BMS Document 55 Filed 09/15/2003 Page 1 of 9
maritime activity). Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1973)):

Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501 (1918); Southern Pacific Ry. Co.

v. Jensen, 244 U.S. 205 (1917). Thus, all courts will apply their own procedural rules, but if the

matter is otherwise cognizable by Admiralty, the state court (or federal court even if only diversity

jurisdiction has been asserted) must apply the federal maritime substantive law, whether or not

admiralty jurisdiction has been asserted. Jensen, supra. See also: Carlisle Packing Co. v.

Sandanger, 259 U.S. 255 (1922); Preston v. Frantz, 11 F. 3d 357 (2nd Cir. 1994); Carey v.

Bahama Cruise Lines, 864 F.2d 201 (1st Cir. 1988); Hodes v. S.N.C. Achille Lauro, 858 F.2d 905,

1988 A.M.C. 2829 (3rd Cir. 1988), cert. den. 490 U.S. 1001; Scudero v. Todd Shipyards Corp.,

385 P.2d 551, 1964 A.M.C. 403 (1963); Van Deursen v. Dunlap Towing Co., 562 P.2d 666,

1977 A.M.C. 870 (1977); Finn Gjertsen v. Mawson & Mason, Inc., 1988 A.M.C. 1384, 522

N.Y.S. 2d 891 (N.Y.C.Ct. Appell. Div. 1988) (L.H.W.C.A. action). 

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al., 170 N.J. 602, 790 A.2d. 884 (S.Ct. N.J. 2002), ap. dis., 171 N.J. 334, 793 A.2d 714 (2002),

controls. Plaintiff’s position is misplaced.

While concurrent jurisdiction with the State of New Jersey may apply in a situation where

there is an overlap with state remedies (Sunship, Inc. v. Pennsylvania, 447 U.S. 715, 720, 65 L.Ed.

2d 458, 100 S.Ct. 2432 (1980)), that situation does not exist in this case. In 1994, the definition of

“employee” in §34:15-36 of the New Jersey Workers’ Compensation Act was amended to eliminate

from coverage employees, such as Plaintiff, eligible under the L.H.W.C.A. As stated by the New

Jersey Court of Appeals in Street v. Universal Maritime, et al., 300 N.J. Super 578, 693 A.2d. 535

(1977):

Prior to adoption of the Amendment, there was concurrent 

jurisdiction under the Federal and State Act requiring compensation 

of maritime workers for job related injuries. See Sunship, Inc. v.

Pennsylvania, 447 U.S. 715, 100 Supreme Court 2432, 65 L.Ed.2d. 

458 (1988). As a result of the Amendment, a New Jersey maritime

employee is limited to seeking compensation under the Federal Act.

300 N.J. Super. 578, at 580.

 Thus, inasmuch as the Laidlow case may alter the federal law on point, it has no application.

On the other hand, even assuming that it did apply, it would do nothing to ameliorate both the

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2

 See 790 A.2d at 887, citing N.J.S.A. 34:15: 8 requiring the commission of an

“intentional tort” in order to circumvent the employer immunity to suit provided under the Act. 

The Laidlow Court merely modified what is required to prove an intentional tort for purposes of

the New Jersey Workers Compensation statute. It should also be pointed out that the Laidlow

case involved facts which clearly pointed to intentional, wrongful conduct on the part of the

Defendant employer: over a twelve year period, disconnecting a safety device which if in

operation would have prevented Plaintiff’s hand from being caught in a rolling mill; only engaging

the device when OSHA inspectors came to the plant; a number of “close calls” prior to Plaintiff’s

serious injury; no response to Plaintiff’s multiple requests to his supervisor to activate the guard;

and, the employers’ admission that it removed the guard for “speed and convenience.” Id., at

pp.887-889. The Court concluded that these facts, and “...the guilty knowledge of AMI as

revealed by its deliberate and systematic deception of OSHA [demonstrate] that AMI knew that it

was substantially certain that the removal of the safety guard would result eventually in injury to

one of its employees.” Id., 897-898. 

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procedural and substantive deficiencies of Plaintiff’s claim. Plaintiff’s count against Trans Ocean is

that it committed “gross negligence” and, as such, that this abrogates the immunity provision

L.H.W.C.A. §905(b) thereby allowing him to sue his employer directly. Laidlow reiterates the same

requirement as that in the federal case law, that one must plead an “intentional tort.”2

 Plaintiff has

not done that. Further, Plaintiff has done nothing by way of response to Defendant’s Motion and

supporting exhibits to demonstrate any factual basis whatsoever which would support a claim that

Trans Ocean intentionally acted to harm him. 

BORROWED SERVANT DOCTRINE AND STATUS OF DEFENDANT JOSEPH

LEVY’S EMPLOYMENT WITH HOLT

Although acknowledging the application of federal admiralty law in his argument with regard

to Trans Ocean, Plaintiff next switches position and asserts that with regard to the borrowed servant

doctrine, only state, not federal, law applies. This position is incorrect. Federal maritime rather than

state law applies, since the situs of the injury was on a ship on navigable waters and the alleged

negligence bears a significant relation to maritime activity. See cases cited, n. 1, p. 1-2 of this brief;

see also: Jones & Lauglin Steel Corp.v Pfeifer, 462 U.S. 523, 547, 1983 A.M.C. 1881, 1900, 76

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L.Ed.2d 768, 103 S.Ct. 2541 (1983); Webster v. M/V MOOLCHAND, 1986 A.M.C. 2854, 286-

61,730 F.2d 1035 (5

th Cir. 1984); Helaire v.Mobile Oil Co., 1984 A.M.C. 820, 837, 709 F. 2d 1031

(5th Cir. 1983); Finn Gjertsen v. Mawson & Mawson, Inc., 1988 A.M.C. 1384, 522 N.Y.S.2d 891

(N.Y. S.Ct., Appell. Div. 1988). 

Likewise, the case law is uncontradicted that when a Court is faced with determining the

extent of coverage under a federal statute such as the L.H.W.C.A., federal law applies. Griffith v.

Wheeling-Pittsburgh Steel Corp., 1980 A.M.C. 833, 610 F.2d 116 (3

rd Cir. 1979); Hurst v. Triad

Shipping Co., 554 F.2d 1237 (3rd Cir. 1977), cert. den., 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed. 2d 134

(1977); Rex v. CIA. Pervana de Vapores, S.A., 493 F.Supp. 459 (E.D. Pa. 1980, rev’d and rem. on

other grds., 660 F.2d 61 (3

rd Cir. 1981). This includes, specifically, the determination of borrowed

servant status in a L.H.W.C.A. tort action. Gaudet v. Exxon Corp., 1978 A.M.C. 591, 597, 562 F.2d

351, 357 (5th Cir. 197), cert. den., 436 U.S. 913, 1978 A.M.C. 1895 (1978); Canty, et al. v. A.

Bottacchi, et al., 1994 A.M.C. 2152, 2155-56, (S.D. Fl. 1994). 

Under the Federal Law cited in Defendants’ Memorandum of Law in Support of their

Motion for Summary Judgment, it is clear that Mr. Levy was a borrowed servant of Trans Ocean

at the time of the incident. Plaintiff has done nothing by way of argument or by way of exhibits to

his Response to contradict these undisputed facts and law. What is more, the New Jersey law

cited by Plaintiff effectively mirrors the applicable federal law in its focus on whether the

borrowing employer was responsible for the borrowed employees working conditions, and

whether the employment was of such a duration that the borrowed employee could be assumed to

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3

 Plaintiff served a Supplemental brief in Opposition on September 10, referencing Joseph

Levy’s deposition transcript and pointing out what Defendants have previously brought to the

attention of the Court in their Memorandum, that Mr. Levy was paid by Holt (see Defendants’

Memorandum, p. 14). As stated in Defendants’ Memorandum, this is the only factor of the 10

that the courts look to which militates against a finding that Mr. Levy is a borrowed servant of

Trans Ocean. And, as further stated in Defendants’ Memorandum, in light of the fact that Holt

billed Trans Ocean for Mr. Levy’s services, this factor actually supports a borrowed servant

finding (p. 14, Defendants’ Memorandum of Law). Likewise, Plaintiff incorrectly asserts that Mr.

Levy’s statement at p. 16 of his deposition that “I was not employed by Trans Ocean Maritime

Services” constitutes a “party admission.” To the contrary, this is simply a statement of fact

which underlines his status as a borrowed servant of Trans Ocean. As stated in Defendants’

Motion and Memorandum, Mr. Levy testified that although employed by Holt (which provided

consulting services to Trans Ocean), he was assigned by Holt to Trans Ocean where he worked in

the capacity of General Manager (Ex. “C” to Defendants Motion for Summary Judgment, Levy

dep. pp.18-22). 

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have acquiesced in the risks of the new employment.3

 

Finally, Plaintiff simply asserts, again with no factual or legal foundation, that “the same

argument would pertain to Defendant Maureen Levy” and that he did not depose Maureen Levy

because of Holt’s “failure to provide” her address (Plaintiff’s brief, p. 14). As stated in Joseph

and Maureen Levys’ Response to Plaintiff’s Motion for Entry of Default Judgment, the facts are

undisputed that Maureen Levy has nothing to do with this litigation. She was never assigned to

Trans Ocean. She had nothing to do with discharge activities. Her duties were in the

environmental/regulatory area. All these things were testified to by her father, Joseph. 

Furthermore, her addressed and telephone number were accessible through directory assistance,

the white pages, and the internet. See Ex. “B” to Levys’ Response to Plaintiff’s Motion for Entry

of Default Judgment. 

LIABILITY OF HOLT

Plaintiff does nothing to address Defendants’ Motion, Memorandum, and Exhibits, which

point to uncontradicted facts on the record demonstrating that Holt committed no acts of

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negligence and that it is undisputed that there is no causal connection between anything Holt did

or did not do and the Plaintiff’s claimed injuries. Instead, Plaintiff in his brief in Opposition simply

states: 

Defendant Holt is vicariously liable for the tortuous of its agents/employees: Joseph Levy

and Maureen Levy (sic). This liability is also direct liability based upon Exhibits H, I & K. 

Exhibit “H” is a copy of a memo from Dick W. Klompe of Kent Line to Joe Levy in his

capacity as General Manager at Trans Ocean regarding the cargo and discharge itinerary of the

voyage at issue. Plaintiff asserts, through Exhibit “I,” the Affidavit of his liability expert David E.

Cole dated September 5, 2003, that Mr. Klompe’s statement in Ex. “H” that 16 of the CR coils

stowed in the #1 forward have a weight in excess of the ship crane’s capacity and should be

unloaded using the shore crane, is demonstrative of Holt’s negligence. Plaintiff’s theory now

appears to be that the vessel was stuck in the mud at the bottom of the river and when the

unloading of the heavier steel coils from the #1 hold was accomplished through use of the shore

crane, the release of this cargo caused a “heeling movement” of the ship as it came free of the

muck. Specifically, Mr. Cole states:

...Mr. Crouse gave no consideration of the fact that the vessel may have been positioned

on the river bottom during the off loading operations; and that consequently the vessel

was freed from being stuck in the muck at the water’s bottom after the unloading began

when the unloading process changed from the dock cranes to the vessel cranes. 

In other words, the switching from the shore cranes to the vessel cranes which is

documented in the record ship log 6/23/00; KL084 - caused what is known as heeling

movement. Specifically this phrase heeling moment (sic) means that the vessel would list

as the weight is moved outboard from the center line. 

See Plaintiff’s Ex. “H,” Affidavit of David E. Cole, dated September 5, 2003, para. 11-12. 

Case 2:02-cv-04488-BMS Document 55 Filed 09/15/2003 Page 6 of 9
4

 Apparently Plaintiff is abandoning his previous theory, as testified to by him during

deposition, that the ship listed as a result of the release of ballast during unloading. Not only is

this theory devoid of any foundational facts, but Mr. Cole’s affidavit is improper insofar as it

constitutes the submission of a new expert report with new conclusions well beyond the cutoff

date for submission of Plaintiff’s expert reports. 

5

 Note that Mr. Cole asserts at para. 10 of his Affidavit that Mr. Crouse “ignored facts of

record” in his stability calculations, citing an email of 6/24/00 with David Reid concerning tidal

conditions. This has no bearing on the issues of this case, since this concerned discharge at

Novolog’s facility in Fairless Hills, Pennsylvania, subsequent to the discharge at issue. 

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This new theory as to the vessel’s purported listing, like Plaintiff’s previous one,4

 is

completely lacking of any supporting facts. It is classical speculation. It defies all evidence of

record. There is not the slightest suggestion in the record that the ship was “stuck in the muck”

on the river bottom. The vessel log, the general arrangement plan, the ballast records, the vessel’s

particulars, and the stability calculations all demonstrate that no listing or “heeling” of the vessel

occurred as alleged by Plaintiff. Instead, Captain Crouse testified that the vessel was in stable

condition, as indicated by the stability records, and that cargo operations alone could account for

a list of no more that 1.157 degrees, based on the “worst case scenario” of all three ship’s cranes

being simultaneously swung over the side of the vessel, each having a draft weight of 16 tons (see

Ex. “C” to Co-Defendant Kent Line’s Reply brief, pp. 178-79, 188-190).5

 

Indeed, the positive evidence concretely shows that Plaintiff’s new theory lacks all

credibility. According to the Port Log for June 23, 2000, at 0645 the stevedores boarded the

vessel, and at 0656 resumed discharge from the no. 1 hold with a shore crane, and no. 2 and 3

with the ship’s crane. At 0740 they discontinued use of the shore crane in no. 1 and began using

the ship’s crane at no. 1 (Ex. “A” attached hereto, M/V KENT VOYAGEUR Cargo Operations

Log (Port Log) entry for 6/23/03; Crouse dep., p. 188, Crouse Ex. 4, 19, Ex. “C” to Kent Line’s

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Reply brief). According to Plaintiff, his injury and the purported list occurred at approximately

8:30 a.m. (Ex. “D” to Defendants’ Motion for Summary Judgment, p. 20). Plaintiff’s theory that

the movement in the ship occurred when the ship was “freed from being stuck in the muck at the

water’s bottom when the unloading process changed from the dock cranes to the vessel cranes”

(Cole Affidavit, Plaintiff Ex.”I,” para. 11) is thus patently devoid of merit since the movement

Plaintiff’s speculates about could only have occurred nearly an hour before his injury. 

Finally, even assuming that there was any credibility at all to Plaintiff’s new theory, which

there is not, Plaintiff fails to address how Holt would bear any direct liability, or “vicarious

liability” through Mr. Levy’s actions, since there is nothing on record which shows any causal

nexus between any acts or omissions of Holt or Mr. Levy and the theoretical listing of the ship

which allegedly lead to Plaintiff’s injuries. 

RULE 11 SANCTIONS

Defendants’ acknowledge that the Request for Rule 11 Sanctions should be submitted to

Plaintiff by way of separate Motion, and as such withdraw that request from the instant motion,

without prejudice. 

CONCLUSION

It is respectfully submitted that moving Defendants have met their burden of showing that

no genuine issue of material fact exists as to their entitlement to summary judgment in this case,

and that Plaintiff has not fulfilled his responsive duty by presenting actual evidence of such an

issue which must

be resolved at trial. Instead Plaintiff cites inapplicable case law, and has either not responded at

all, or relies on conclusory allegations which are contradicted by the evidence of record. 

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For the reasons set forth above and in Defendants’ Motion, Memorandum of Law, and

exhibits, Defendants request this Court grant their Motion for Summary Judgment and dismiss all

claims against them, and award reasonable costs and attorneys fees.

Respectfully Submitted.

MATTIONI, LTD.

 

Faust Mattioni, Esquire

Paul A. Kettunen, Esquire

399 Market Street, 2nd Floor

Philadelphia, PA 19106

(215) 629-1600

Dated: September 15, 2003 

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